New Changes to Spousal Shares in Florida Intestate Estates

Beginning October 1, 2011, new rules regarding Florida Intestate Estates will go into effect, drastically changing what happens in estates involving spouses who die without a Will. Florida law has long recognized the rights of married persons whose spouse dies intestate, or without a Will. The surviving spouse’s share was determined based upon whether the deceased spouse had children, and whether those children were also the children of the surviving spouse.

Under the current law, Florida Statute §732.102, the intestate (without a Will) share of the surviving spouse is:

(1)  If there is no surviving descendants of the decedent, the entire intestate estate.

(2)  If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution.

(3)  If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

After October 1, 2011, if a married person dies without a Will and is survived by a spouse and children, all of whom are also the children of the surviving spouse, then the surviving spouse will receive 100% of the deceased spouse’s probate estate. This is a fairly significant change to Florida Statute §732.102 (2). The reasoning behind the change appears to be that a married couple with children born of their marriage would most likely want their spouse, who is also the mother or father of their children, to inherit 100% of their estate. However, this may not always be the case, especially where one spouse comes from a wealthy family who prefers that their wealth be passed along through their family blood lines.  If all the money goes to the surviving spouse and he or she gets remarried then perhaps none of the family money is passed down through the blood line.  If it is important to avoid this conclusion, then estate planning should be done to ensure proper disposition of the estate.

This new law is in line with the Florida legislature’s history of implementing increased protection for surviving spouse’s in the State of Florida (e.g., elective share, homestead protection, exempt property, family allowance, and pretermitted spouse statutes).

            There are certain procedures that need to be followed in seeking the determination of incapacity and the appointment of a guardain.  Needless to say, they are quite stringent.  Florida courts understand the gravity of implementing a guardianship and do not take such a course of action lightly.  The relevant statutes in determining incapacity are found in Chapter 744, Florida Statutes, along with the Guardianship Rules within the Florida Probate Rules. 

            The first step in the process is having your attorney file a petition to determine incapacity.  This petition must be filed in the county where the alleged incapacitated person resides or is found.  In addition, it must be signed by the party seeking such a determination under penalties of perjury (also known as a “verified petition”).  Pursuant to Fla. Stat., 744.3201(3), a petition for appointment of a guardian must be filed simultaneously with the petition to determine incapacity.  If the petition to determine incapacity is dismissed for lack of a finding of incapacity, and there is a further finding that the petition was filed in bad faith, the court may assess costs against the petition pursuant to Fla. Stat., 744.331(7)(c). 

            The court has the authority to declare a person unable to perform or exercise the following rights (but not delegate them to the guardian): to marry; to vote; to personally apply for government benefits; to have a driver’s license; to travel; to seek or retain employment.  Other rights that may be removed and may be delegated to the guardian include the following: to contract; to sue and defend lawsuits; to determine his or her own residency; to consent to medical treatment; to manage property or make any gift or disposition of property; and to make decisions about his or her social environment or other social aspects of his or her life. 

            Once the petition has been filed with the court, along with payment all of the proper filing fees, the court appoints an attorney to represent the alleged incapacitated person (“AIP”).  This court-appointed attorney for the AIP represents the expressed wishes of the AIP consistent with the rules regulating the Florida Bar.  In addition, the court appoints an examining committee to determine the mental capacity of the AIP.  Depending on the county where the proceedings are held, the examining committees are either selected by the mental health clerk and appointed by the court or they are selected from a local list by the attorney for the proposed guardian.  Each committee member performs an assessment of the AIP and prepares a report, which is provided to the court and appropriate counsel.  The court relies heavily on these committee reports in making its own determination on whether the AIP is, in fact, incapacitated. 

            While making a determination on an AIP’s incapacity, the court will always consider whether there is a less restrictive alternative to a guardianship.  One such alternative is a durable power of attorney.  If the person has the mental capacity to execute a durable power of attorney document, the guardianship may be avoided.  However, a durable power of attorney does not provide the attorney-in-fact with the power to force the maker of the document to do anything that the maker does not want to do.  It simply provides the attorney-in-fact with the right to perform the tasks outlined in the document.

            Another such alternative is a designation of health care surrogate.  If such a surrogate has been designated in writing, he or she has the authority to make the medical decisions for the person.  Some documents also provide the surrogate with the right to make decisions on the person’s mental health as well.

            If a person’s quandary pertains to his or her assets and those assets are jointly owned, the other joint owner can act without the consent of the other, depending on the type of assets it is.

            Fla. Stat. §393.12 provides for a Guardian Advocate for developmentally disabled persons.  Such a guardian may be appointed without the necessity of a determination of incapacity.  Additionally, this guardian may make all medical and residency decisions.  Fla. Stat. §394.4598 provides for the appointment of guardian advocate for the purposes of mental health decisions only.  This guardian is appointed when a patient in a mental health facility has been found to be incompetent to consent to his treatment.

Elder Law – Abuse of the Elderly

In the context of trust and estate litigation, clients occasionally believe the conduct of others rises to the level of criminal liability.  While filing a lawsuit for breach of fiduciary duty or undue influence can help the client collect money, there are times that a client believes that getting money is insufficient.  Short of requesting charges be filed by the police or State Attorney, there is a Florida law that is commonly referred to as the abuse of the elderly statute that goes beyond the traditional recovery of money when a senior adult is abused.

The elder abuse statute (Florida Statute §415.1111) allows for the prosecution of abuse, neglect or exploitation on behalf of a vulnerable adult against any perpetrator.  Such an action pursuant to the statute must be brought by the vulnerable adult, that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect or exploitation.  The statute permits recovery of reasonable attorney’s fees, costs and damages to a party who prevails, and the remedies are in addition to other legal and administrative remedies available to a vulnerable adult.

What can make this statute challenging in the trust and estate litigation context is the threshold issue of standing.  Standing is a party’s right to make a legal claim or seek judicial enforcement of a duty or right.  For a child of an elderly (“vulnerable”) parent to be able to bring a claim under 415.1111 on the parent’s behalf, he or she must either be the guardian of the parent, have the parent’s consent, or be appointed personal representative of the parent’s estate after death.  So as far as estate (“post-death) litigation goes, to satisfy the standing issue one must be the personal representative.

In trust litigation, the elder abuse law does not apply easily.  What is the remedy for a child who is replaced as co-trustee with the parent on a revocable trust by a new acquaintance who does not have the parent’s best interest at heart?  Without consent of the parent to file an elder abuse lawsuit, the child must petition for and be appointed guardian by the Circuit Court.    It has been argued that a very comprehensive durable power of attorney may grant to the child such consent as to confer standing under Florida Statute 415.1111. 

The abuse of elderly law is an additional arrow in the quiver of the estate and trust litigation lawyer.

THE POWERS AND LIMITATIONS OF POWERS OF ATTORNEY

With Great Power Comes Great Responsibility.  Voltaire

There are important differences between standard powers of attorney and durable powers of attorney but each document is ripe for being abused.  A standard power of attorney document provides the authority for another person  (the agent or attorney-in-fact) to make decisions and take actions on the principal’s behalf when the principal is unable to do so for himself or herself.  In the event the principal becomes physically incapacitated, and not able to pay bills or banking transactions or the principal plans to travel and needs to have documents signed while away, then the ordinary or standard power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to execute documents, receive and pay bills and make banking transactions on the principal’s behalf.  A standard power of attorney would become invalid if the principal became mentally incapacitated.

A durable power of attorney (even more likely to be used for improper, illegal and selfish reasons) is a document that authorizes the principal’s chosen agent or attorney-in-fact to execute documents, receive and pay bills and make banking transactions on the principal’s behalf, but would remain effective even if the principal became mentally incapacitated.  It is possible to have the power of attorney document drafted to be broad in scope, giving the agent or attorney-in-fact the authority to make any and all property, financial, medical and personal decisions for the principal; or the power of attorney document could be drafted to authorize the agent or attorney-in-fact to perform very limited, specific duties for the principal.

Florida Statute 709.08 outlines how to create a durable power of attorney, who may serve as the agent or attorney-in-fact, and provides information as to the durability of the power of attorney in Florida Statute 709.08(3)(b), which states:  “The attorney in fact may exercise the authority granted under a durable power of attorney until the principal dies, revokes the power, or is adjudicated totally or partially incapacitated by a court of competent jurisdiction, unless the court determines that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact.”  So, if the durable power of attorney is drafted to include specific language granting the attorney in fact authority to act, even after the principal has been deemed incompetent, that authority will remain intact until the death of the principal.

A little known fact is Florida law (Florida Statute 709.08(7)) outlines the powers and limitations of the durable power of attorney.   The attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney, but may not: 

1) perform duties under a contract that requires the exercise of personal services of the principal;

2) make any affidavit as to the personal knowledge of the principal;

3) vote in any public election on behalf of the principal;

4) execute or revoke any will or codicil for the principal;

5) create, amend, modify or revoke any documents or other disposition effective at the principal’s death or transfer assets to an existing trust created by the principal unless expressly authorized by the precise language of the power of attorney because when the principal dies, the attorney in fact has no further authority to act for the principal; or

6) exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.  The attorney in fact cannot execute documents for the principal as trustee if the principal had been appointed the trustee of a trust.

The attorney in fact is held to a high standard of care pursuant to Florida Statute 709.08(8).  They must exercise a standard of care applicable to a trustee of a trust, and if the attorney in fact’s exercise of power is improper, they will be liable to interested persons for damage or loss resulting from their breach of fiduciary duty as the attorney in fact to the same extent as a trustee of an express trust.  If the power of attorney exceeds their power, exercises improper powers, breaches their fiduciary duty, self-deals, acts as a trustee for the principal, or does not invest the principal’s assets prudently, the interested persons may have standing to initiate litigation against the power of attorney.

Inevitably, relatives abuse powers of attorney.  They confuse the power granted to them with the improper use of that power by serving their own selfish financial gain.  With great power comes great responsibility to protect the person granting the power.  Far too often, my clients hear the threat “I can do whatever I want to with the power of attorney.” 

If you believe a person holding the power of attorney is breaching their fiduciary duty, self-dealing, squandering assets, or not investing the principal’s assets prudently, it is imperative that you promptly contact a skilled and competent attorney so that the appropriate action can be taken, including the commencement of litigation against the person abusing the power of attorney.

After a judicial hearing is held and the ward is found to “lack the capacity to manage some or all of his/her property or to meet at least some of the essential health and safety requirements of such person”(§ 744.102(12), Florida Statutes), the proceeding for an involuntary guardianship is implemented.  The Court may appoint either a plenary or limited guardian, depending on the extent and severity of the ward’s incapacity. 

In a plenary guardianship, all of the Ward’s delegable rights are delegated to the guardian; no rights are reserved for the Ward.  § 744.102(9)(b), Florida Statutes.  These delegated rights are found in § 744.3215(3)(a-g) and include the following: to contract; to sue and defend lawsuits; to apply for government benefits; to manage property or to make any gift or disposition of property; to determine his or her residence; to consent to medical and mental health treatment; and to make decisions about his or her social environment or other social aspects of his or her life.  A plenary guardianship is the most common type of guardianship.  There are statutory procedures in place wherein the ward may have his rights restored at a later time; however, according to a 1998 study commissioned by the Claude Pepper Foundation, such restoration of rights only occurs in 2.63% of guardianship cases. 

In a limited guardianship, the appointed guardian is appointed to exercise some, but not all, of the delegable rights listed above.  § 744.102(9)(a), Florida Statutes.  The order appointing a limited guardian must state the scope of the guardians delegated rights and duties. 

A preneed guardian may also be appointed in two instances.  First, a person designates who shall serve as his or her own guardian in the event the person becomes incapacitated or needs a guardian for any other reason.  Second, a parent may select the person(s) who will serve as the guardian of their minor children should the parent die or become incapacitated while the child is still in the age of minority.  A preneed guardian eliminates the need for prolonged litigation in the appointment of a guardian because the court must appoint the selected guardian if that person is otherwise qualified to do so, pursuant § 744.3046(7). 

A “standby” guardian may be used by the Court after a guardian is appointed.  A “standby” guardian takes on the duties and powers of the appointed guardian within twenty (20) days of the death or resignation of the appointed guardian.  However, the “standby” guardian has no immediate duties or powers.

My probate practice regularly performs cleaning services for the messes caused by maladministration of estates by fiduciaries.  Unfortunately, with increasing frequency, estates and their beneficiaries are victimized not only by negligent fiduciaries, but by attorneys who steal from the estates.

For example, one attorney was recently charged with stealing more than $300,000 in guns, jewelry and art from a friend who died of cancer.   A beneficiary named in the will contacted police after receiving nothing from the estate.    Evidently, the lawyer was unsuccessful in attempting to be appointed personal representative of the estate.  Further, the lawyer was charged with forgery for allegedly signing the decedent’s name on a check two days after the man passed away.  Finally, the lawyer was charged with perjury for allegedly claiming to be executor of the estate when he re-registered several guns in his name.

Misconduct by Florida attorneys involved in handling wills and trusts is not uncommon.  All too often I am asked to investigate and ultimately prosecute will contests which involve attorneys playing an active role, not only in the procurement of the will, but in having themselves or their relatives named as beneficiaries under the will. The Florida Supreme Court has adopted a portion of the American Bar Association’s Model Rules of Professional Responsibility, and in particular, the prohibition against lawyers playing a role in the drafting and execution of a will or trust where they are named as a beneficiary.

Rule 4-1.8. Conflict of Interest; Prohibited and Other Transactions

(c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.

This code provision was relied on in disciplinary proceedings against a lawyer in The Florida Bar vs. Anderson, 638 So.2d 29 (Fla. 1994). In October 1988, Anderson, a probate lawyer, undertook the representation of Mary Sisler. Between that time and Sisler’s death two years later, he prepared nine testamentary instruments, six of which named him or his wife as beneficiaries of Sisler’s estate. The Court found his conduct to be unprofessional even though Anderson did not intend that either he or his wife benefit from the bequests and even though he received no real benefit from any instrument he drafted for Sisler. The Court found, however, that Anderson was attempting, inartfully, to effectuate Sisler’s intent to shield the bequests from the creditors of the Palm Beach Festival, her intended beneficiary.

The Anderson decision and the Rule of Professional Responsibility upon which it is predicated, underscores the deep-rooted policy in Florida that a lawyer who drafts a will in which the attorney or a member of his family is a beneficiary raises the issue of undue influence that taints the entire will and may destroy the validity of other bequests as well. Florida law will not tolerate this conduct as it frustrates the intentions of a client who has entrusted the attorney with the responsibility of seeing that the estate is distributed according to the client’s wishes. Further, in the cases I have handled, I invariably find that the attorney’s credibility as a witness on testamentary capacity is impaired by the attorney’s personal interest in the outcome.

If you need a good probate lawyer, it’s because someone has died and either the estate needs to be administered or there is a dispute over a last will or a fight over a share or portion of the estate.  While there is no guarantee that the lawyer you are hiring is “good,”one method of increasing the odds of hiring a competent probate attorney to check whether your lawyer has a Martindale Hubble rating that is at an acceptable level to you. Martindale-Hubbell Peer Review Ratings reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. For lawyers rated with the changed methodology the Martindale-Hubbell Peer Review Ratings will reflect the following:

General Ethical Standards Rating. The General Ethical Standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities.   Those lawyers who meet the “Very High” criteria of General Ethical Standards can proceed to the next step in the ratings process.

Legal Ability Ratings.  For lawyers rated with the changed methodology, Legal Ability ratings will now indicate professional ability within a specific area of practice. Legal Ability ratings are based on performance in five key areas, rated on a scale of 1 to 5 (with 1 being the lowest and 5 being the highest). These areas are:

•  Legal Knowledge – Lawyer’s familiarity with the laws governing his/her specific area of practice(s).
•  Analytical Capabilities – Lawyer’s creativity in analyzing legal issues and applying technical knowledge .
•  Judgment - Lawyer’s demonstration of the salient factors that drive the outcome of a given case or issue.
•  Communication Ability – Lawyer’s capability to communicate persuasively and credibly.
•  Legal Experience – Lawyer’s degree of experience in his/her specific area of practice(s).

An AV Rating shows that a lawyer has reached the height of professional excellence, has practiced law many years, and is recognized for the highest levels of skill and integrity.

 Adrian P. Thomas is an AV rated lawyer.

Section 736.0415 of the Florida Trust Code expressly provides that unambiguous provisions of a trust may be reformed where clear and convincing evidence shows that the language of the trust does not reflect the settlor’s intent, even where the evidence regarding the settlor’s intent is contrary to the trust itself:

Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor’s original intent, the court may consider evidence relevant to the settlor’s intent even though the evidence contradicts an apparent plain meaning of the trust instrument. See § 736.0415, Fla. Stat. (2010) (emphasis added).

The express purpose of section 736.0415 is to permit reformation of an otherwise clear, unambiguous written trust signed by a settlor where evidence exists that the “plain meaning of the trust instrument” does not evidence the settlor’s intent. A trust with testamentary aspects may even be reformed after the death of the settlor for a drafting mistake so long as the reformation is not contrary to the interest of the settlor. Reformation under the section is available for mistakes of law and of fact. Florida case law also supports reformation to cure scrivener’s or drafting errors. [See In re Estate of Robinson, 720 So.2d 540 (Fla. 4th DCA 1998)]. The party seeking reformation of a trust with testamentary aspects has the burden to prove, by clear and convincing evidence, that the trust, as written, does not reflect the settlor’s intent.

While most probate litigation involves challenging and defending wills and trusts, a recent case I handled dealt with the absence of an original will.  Florida probate law provides that when an original will that is known to have existed  cannot be located after the death of the testator there is a presumption that the testator destroyed the will with the intent to revoke it.  In other words, the law is presuming that a last will and testament is important enough to be kept in a safe place so it can be discovered after death.  However, in our firm’s case, the decedent was believed to have kept the original in his safe deposit box yet shortly after his death many potential intestate heirs had access to the safe.  An intestate heir is an heir who exists only when there is no last will and testament.  In our case, the decedent’s children from his first wife were seeking to inherit even though in the copy of his Last Will and Testament his estate was left entirely to his minor child. 

Although a presumption exists that the will was destroyed with the intent to revoke when the original last will cannot be located, a Florida probate lawyer can assist in trying to overcome that presumption.  To do so, the person who wants the copy of the will or the “lost” will to be honored and admitted into probate has the burden of introducing evidence to honor the copy as the original.  Evidence which is relevant includes a copy of the lost or destroyed will and testimony of the witnesses to the signing of the will.  Florida Statute 733.207 provides that:  Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

Certainly my client, as a named beneficiary in the copy of the will, was an interested person.  Additionally, the children from the first wife who were the intestate heirs of the Decent were also interested persons.  Fortunately, through investigation and discovery, we were able to determine the name of the attorney who created the last will and testament, and at his deposition he produced a copy of the decedent’s will in addition to some notes he took regarding the decedent’s intent.  As his contact with the decedent was limited to drafting a will many years prior, he was able to act as the sole disinterested witness in rebutting the presumption that the decedent intended to revoke his Last Will and Testament just because the original was not located.

The probate court was most interested in the testimony of the drafting attorney as a disinterested person.  This attorney was being called to testify as to the terms of the decedent’s “lost” will.  The lawyer’s testimony had nothing to do with the typical challenge to the decedent’s will for issues of lack of testamentary capacity or fraud.  When the lawyer testified, there was no issue of bias or credibility about what the decedent wanted and that the copy of the will expressed the desires of the decedent.  On the other hand, the Decedent’s children who had access to his safe right after death stood to gain financially if the Court found the Decedent intended to revoke his will because the original could not be found.  Fortunately the evidence we were able to obtain was sufficient to overcome the statutory presumption that the decedent revoked his will because the original was not located.

Florida Will Contest Lawyer

People looking for a will contest lawyer in Florida often ask the following questions:

Can a will be challenged during life?

A will cannot challenged during a person’s life.  Will contests can only happen after death.  Sometime the person who made the last will and testament is still alive but are incompetent and in need of a guardianship.  Many times during the guardianship proceeding evidence about the drafting, creation, and signing the will can be preserved for a will contest after death. 

Can a last will be contested if it was not properly signed?

A will must be signed by the maker of the will and by two witnesses who saw the person sign the will (or who were told by the testator that he signed the will) and those two witnesses must also sign the will. Otherwise, the will is invalid and can be contested.

Is a last will and testament valid if it was signed at a time when the testator was suffering from a mental disease like Alzheimer’s or dementia?

A person signing a Will must have the mental competency to understand the nature of his or her assets and be able to understand the nature of the people who will receive his assets.  If mental illness cause a person to be incompetent based on conditions like dementia or Alzheimer’s, then the will may be declared invalid.

Are no contest clauses enforceable in Florida?

Florida will not honor “no contest” clauses in a wills or trusts.  Those clauses are in violation of Florida public policy and will be ignored.